1 o f 2 Clean Water Act Tribal Provision

Overview Prepared by the U.S. Environmental Protection Agency

Office of Water and Office of General Counsel

May 2015

Summary

The majority of Indian reservations do not have water quality standards to protect human health

and the environment. Only 40 of the more than 300 federally recognized tribes with reservations have completed the process of obtaining EPA’s approval to be tr eated in a manner similar to a state (TAS) and adopted standards for their waters that EPA has approved.

EPA is considering a new approach to tribal authority to obtain TAS status for the water quality standards program and other Clean Water Act regulator y programs. The new approach would streamline the process for applicant tribes and advance cooperative federalism by facilitating tribal involvement in the protection of reservation water quality as intended by Congress.

Background
Since 1991, EPA has followed a cautious approach that requires applicant tribes to

demonstrate their inherent authority to regulate waters and activities on their reservations under principles of federal

I ndian law.

The Agency has consistently stated that its approach was subject to change in the event of further congressional or judicial guidance addressing tribal authority under Section

518 of the Clean Water Act.

Having received such guidance, EPA is considering whether to reinterpret Section 518 as an express delegation of authority by Congress to eligible Indian tribes to administer regulatory programs over their

entire reservations.

What would the new approach do? It would allow tribes applying for TAS to administer CWA regulatory programs to rely on a congressional delegation under Section 518 as the source of authority to regulate their reservation waters. Tribes would no longer need to demonstrate their

inhe rent authority to regulate under the

CWA. It would also bring EPA’s treatment of

tribes under the Clean Water Act in line with

EPA’s treatment of tribes under the Clean Air Act, which has similar statutory language addressing tribal regulation of

resource s in reservation areas.

What would not change under the new approach?
This new approach would not revise any text in EPA regulations.

All existing regulatory provisions would remain in effect, including those that provide for tribes to identify the bound aries of the reservation areas over which they seek to exercise authority and for adjacent state(s) to have an opportunity to comment to EPA on an applicant tribe’s assertion of authority.

Would the new approach affect the geographic scope of TAS?

No. The proposal would neither expand nor contract the geographic scope of potential tribal TAS eligibility. Under the Clean Water Act, tribes can only obtain TAS status

over their reservations.2 o f 2

Would the new approach affect any existing limitations on trib al criminal enforcement authority?

No. The proposal relates solely to civil regulatory authority.

What if my tribe or state has special circumstances affecting CWA regulatory authority?
There could be instances where special circumstances would limit or p reclude a particular tribe's ability to accept or effectuate the congressional delegation of authority over its reservation. For example, there could be a separate federal statute establishing unique jurisdictional arrangements for a specific state or

res ervation. Any such issue would be

addressed on a case

- by

- case basis and with

the benefit of a full record of relevant information that would be developed during the processing of a particular tribe's application for eligibility to regulate under

the Clean Water Act.

Who may be affected by or interested in this potential action?

 Federally recognized Indian tribes with reservations that could potentially seek eligibility to administer CWA regulatory programs, and other interested tribes.

 States adjacent to potential applicant

tribes.

 Industries or municipalities discharging pollutants to waters within or adjacent to reservations of potential applicant tribes.

Would the potential action affect previous EPA approvals of TAS for water quality

standards?

No. I t would not affect the 49 previous EPA approvals of tribal TAS for water quality

standards. Would the proposal affect the scope of existing state regulatory programs approved by EPA under the Clean Water

Act?

No. The new approach would have no effect on the scope of existing state regulatory programs approved by EPA

under the CWA. It would n ot diminish or enlarge the scope of such approved state

programs.

How would EPA adopt the new approach?
EPA would publish a notice in the Fed eral Register proposing the action and provide an opportunity for public comment before making any final change.

For more information

Contact Fred Leutner at Leutner.Fred@epa.gov or (202) 566

- 0378,

or visit EPA's websit e at http://water.epa.gov/scitech/swguidance/stan dards/wqslibrary/tribal.cfm

.